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Vicarious liability for employee actions: a warning for retailers

Supreme Court decisions are not generally reported in the national news but there was an exception a couple of weeks ago for the case of Mohamud v WM Morrison Supermarkets Plc [1]. In this case, a Morrisons customer, who was assaulted by a Morrisons employee, successfully brought a claim against the supermarket retailer on vicarious liability grounds.

Employers can be “vicariously liable” for the tortious acts of their employees but only where there is a sufficiently close connection between the wrongful act (or omission) of the employee and his or her employment. Much recent case law has focused on the existence or otherwise of such sufficiently close connection. In the Morrisons case, the Supreme Court defined this more broadly than employers would have perhaps have wished and indeed more broadly than the Court of Appeal, whose decision they overturned.

The facts of the case are that the customer, Mr Mohamud, visited a Morrisons supermarket and petrol station premises. He approached the kiosk, manned by Mr Khan, a Morrisons employee, and asked if it would be possible to print some documents from his USB stick. Mr Khan replied that it would not, using racist and abusive language, and then followed Mr Mohamud outside where he violently assaulted him, punching him in the head and kicking him to the ground, ignoring the protestations of his supervisor as he did so.

Mr Mohamud’s personal injury claim against Morrisons was rejected at first instance and by the Court of Appeal. This was on the basis that there was an insufficiently close connection between Mr Khan’s wrongful act and his employment with Morrisons. The Supreme Court disagreed.

The Court rejected the suggestion that it was time to formulate a new test – the “sufficient connection” test was not perfect, the Court admitted, as it lacked precision but that lack of precision was also a benefit as it enabled each case to be determined according to its own unique circumstances. This involved a consideration of the following two questions:

What was the nature of the job or field of activities involved, taking a broad approach to this question?

Was there sufficient connection between the position and the wrongful conduct to make it right for the employer to be liable?

Mr Khan’s duties as an employee were to attend to customers and respond to their queries. When the violent conduct took place, Mr Khan was responding to a query from Mr Mohamud. He had also told him never to return to Morrisons’ premises. In issuing this order, he was purporting to be acting on behalf of his employer rather than on his own account. Nor did the fact that he had left the kiosk and pursued Mr Mohamud onto the forecourt break the close connection with his duties.

In summary, while the assault was clearly a gross breach of his duties it was nonetheless carried out in connection with the business of serving customers, which is what Morrisons paid Mr Khan to do.

The decision will disappoint retailers. The Supreme Court applied a broad approach to its assessment of the job and activities undertaken by Mr Khan and the decision arguably reduces the scope for individual “frolics of their own” by employees to fall outside the scope of their employment.

However, the fundamental position has not really changed which is that the question of whether there is a sufficiently close connection between the act (or omission) complained of and the nature of the perpetrator’s employment will be examined on a case-by-case basis. Employers of customer-facing staff can issue policies and reminders to staff about how to behave (although they may not spell out that staff must not punch customers, this being a statement of the obvious) but there is no cast-iron guarantee that some employee somewhere will not one day behave in a way which risks the employer incurring vicarious liability – this need not be through something as stark as a physical assault; it is more likely to be through a negligent act or omission. In such cases, the employer will have to hope that there is sufficient detachment between the employee’s act and the nature of their employment to mean that the sufficiently close connection is not established.

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Compare jurisdictions: Employment: USA

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